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Washington Supreme Court Allows Mother to Obtain Protection Order on Behalf of Son

Washington civil protection order attorneys understand that domestic violence can be a complex issue that reaches beyond the couple. Children may become involved by witnessing the violence or by being threatened.  Washington law allows a person to petition for a protection order on behalf of himself or herself, or on behalf of minor family or household members.

empty cribA Washington Court of Appeals, however, recently held that a mother could not obtain a protection order on behalf of her child when the child was not “present” for the violence and did not have fear of imminent harm, bodily injury, or assault.  The Washington Supreme Court disagreed.

In this case, the mother petitioned for a domestic violence protection order against her son’s father on behalf of herself and her children following a history of domestic violence.  According to the Washington Supreme Court opinion, the man had repeatedly physically and emotionally assaulted his son’s mother.  He pushed her to the ground while she was pregnant, had tried to smother her with a pillow, pulled a knife on her, threatened to kidnap their son, and threatened to do something horrible to her daughters.  He also threatened to kill her, her children, and himself.

After the couple separated, the man came to the woman’s home at 2:00 a.m. and pounded on her door.  She opened the door enough to tell him to leave, and he pushed his way in and started choking her.  She grabbed a knife and stabbed him.  The man was then arrested.

The mother’s petition described this assault and the history of violence against her.  The court granted her a temporary order pending a full hearing.  The man appeared at the hearing and denied the allegations of abuse.  The woman stated that their son had been asleep in another room at the time of the choking incident.  She stated that she was afraid the man would take their son, based on previous threats he had made.  The court granted the order as to the woman and her daughters.  The court found, however, that the boy was not present during the assault and therefore did not include him in the order.

The mother appealed, arguing the son should have been included in the protection order, based on her fear his father would hurt him.  The Court of Appeals found a petitioner may only seek relief based on fear of imminent harm to herself and affirmed.  The Washington Supreme Court granted review.

The mother argued that “domestic violence” as defined in the statute allows a parent to petition for a protection order on behalf of a child, based on the parent’s fear of harm to the child by the other parent.  The court first looked at the statutory definition of domestic violence.  “Domestic violence” is defined in relevant part as physical harm, bodily injury, assault, or the infliction of fear of imminent harm, injury, or assault, between family or household members.  RCW 26.50.020(1)(a).

The Washington Supreme Court found the appeals court’s reading of the statutes too narrow.  The appeals court found the language referenced fear possessed by the person seeking protection rather than a family member’s fear of harm to the one for whom protection is sought.  The Court found this reading ignored the “between family or household members” language in the definition.  The Court found the definition allowed the fear to be between family members “without restriction.”  It therefore included a mother’s fear for her child.  The Court found the language to be plain and unambiguous.

Furthermore, the context of the statute and the statutory scheme show that it was broader than just the petitioner and the perpetrator.  The statutes allow a person to seek a protection order on behalf of a minor family member or household member.  These terms are defined broadly under the statutes, showing a legislative recognition that domestic violence can encompass a variety of relationships.

The Court also noted that a person who was not a victim of domestic violence may be included in a protection order.  A trial court has broad discretion to protect victims and their loved ones and may order a respondent not to have contact with the victim and members of the victim’s household.  The Court found that these provisions would not make sense if the definition of “domestic violence” required a person to have a personal fear of violence to be included in a protection order.

Furthermore, a narrow reading of the definition that resulted in a threatened child being excluded from a protection order because he was not present or too young to appreciate the threat would thwart rather than further the legislative intent behind the Domestic Violence Prevention Act.

Based on the plain language of the statute, the context, and the statutory scheme, the Court found that the mother’s fear of harm to the child constituted domestic violence, and the child should have been included in the protection order.

The mother also argued that exposure to domestic violence is harmful in itself and also constitutes domestic violence.  The mother and amicus submitted psychological studies in support of this position.  The appeals court declined to address this issue as a new argument.  The mother argued, however, that she had alleged the boy was in her home at the time of the assault and that she had asked the trial court to determine if the facts constituted domestic violence.  The Court found the argument had been well presented for a pro se petitioner and addressed it.

The Court held exposure to domestic violence is harmful under the DVPA.  The Court considered the various physical and psychological effects such exposure can have on a child and how domestic violence is connected to other major social problems.  In this case, the child was in the home while his father choked his mother.  The child could have heard what was happening.  The Court found it likely that the child was exposed to domestic violence under the facts and that such exposure constituted domestic violence.

The Court found the trial court had abused its discretion in failing to consider the harm to the boy and reversed the Court of Appeals.

This case shows that children may be included in a protection order even if they were not direct victims of violence or even present for the violence.  Our Washington civil protection order attorneys understand the law surrounding civil protection orders and know how to protect your rights.  Whether you are seeking an order or opposing an order being pursued against you, call Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.

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